State v. Kallas , 134 Wash. 192 ( 1925 )

Since the submission of this case a stipulation has been filed dismissing the appeal in so far as it concerns the appellant Frank Saligas.

The information charged that the appellant Kallas and one other, on or about February 28, 1924, in the county and city of Spokane, did unlawfully "conduct, carry on and operate as owners, managers, agents and clerks, a certain gambling game played with dice, the same being a game wherein money and property and the representative thereof was bet, wagered and hazarded upon chance."

The appellant seeks reversal on several assignments of error, the first of which is that the court refused to permit cross-examination of the prosecuting witness with reference to immunity having been promised him. We find no error in this regard. After this witness had been quite extensively cross-examined, particularly with reference to certain checks he had issued on banks where he had no money, the court advised the appellant's attorney that he would not permit that class of cross-examination to proceed further. The appellant then stated that he desired to show by the witness that he had been promised immunity if he would testify against the appellant in this case. The court expressly ruled that the witness might be cross-examined in that respect. The only check which the court made to the cross-examination of the witness was concerning offenses which the witness had himself committed. Matters of this character are very greatly in the discretion of the trial court and there was no abuse of that discretion in this instance.

The next assignment is based upon an instruction given to the jury wherein the court said that the words "conduct, carry on and operate," as used in the statute and in the information, are "applicable to persons co-operating in the instituting and administering of the establishment, whatever may be the peculiar relations they sustain to it and to each other in rendering such co-operation. It applies to one who controls the establishment and procures or permits an illegal gambling game to be carried on therein, or to one who engages in the illegal use of the premises and thus aids in conducting, carrying on and operating the game. Hence a clerk or servant waiting on participants in the game and collecting from them money for the use of the owner or proprietor and who aids and assists players in the game in protecting them in any way is an agent within the meaning of the law." The objection seems to be that the instruction has reference to the maintenance of a place where gambling is carried on rather than to the game itself. The instruction goes no further than to inform the jury when and under what circumstances one may be engaged in a gambling game. While it possibly goes into unnecessary detail, yet it would seem impossible for the jury to have been in any respect misled.

The next assignment is that the court erred in not granting a new trial. It appears that, at a preliminary hearing before a justice of the peace, the prosecuting witness had testified that he had not been previously convicted of a crime in the city of Pasco, admitting, however, that he had been arrested but discharged. He gave similar testimony on the trial of this case in the superior court. In support of his motion for a new trial, the appellant presents some affidavits and what purports to be a certified copy of a record of conviction of the prosecuting witness in Pasco. We cannot grant a new trial on the showing made, because it appears that, before this case went to trial, the appellant had considerable, although not full, information concerning the matters which he now presents in his affidavit. Under those circumstances, it was his duty to have asked for a continuance of his trial until such time as he could get the desired information. Not having asked for such, but going ahead with the trial, we will not now grant his motion. In any event, the newly discovered testimony could serve no other purpose than to impeach, or attempt to impeach, the testimony of the prosecuting witness. We have held that a new trial will not be granted where the sole purpose of the newly discovered evidence is to impeach a witness. Orr v. Schwager Nettleton,74 Wash. 631, 134 P. 501; State v. Hodoff, 88 Wash. 413,153 P. 377.

We cannot find anything in the record which would sustain the next assignment of error, which is alleged misconduct on the part of the prosecuting attorney in discussing before the jury the failure of the appellant to testify in his own behalf.

Nor can we sustain the contention that the court erred in entering judgment upon its verdict for the reason that the evidence was insufficient to justify it. There was ample testimony upon which to submit the case to the jury.

We are unable to find anything in the record which would indicate that appellant did not have a fair trial, and for that reason the judgment is affirmed.

TOLMAN, C.J., PARKER, MAIN, and ASKREN, JJ., concur.